Southern Environmental Law Center, part 2

About Our Guest

Cale Jaffe is the Director of the Virginia Office of the Southern Environmental Law Center or SELC, a nonprofit organization which utilizes the weight of the law to safeguard air, water and the unique ecosystems throughout the southeast. Cale received a BA from Yale University in American Studies and a JD and MA in Legal History from the University of Virginia. Cale Jaffe has been an attorney with SELC since 2004. From 2006 to 2013 Cale served as a lecturer at the University of Virginia Law School where he taught a seminar on Environmental Law and Federalism. Among his numerous academic and bar publications are “The Toxic Legacy of Coal Ash on Southeastern Rivers”, William and Mary Environmental Law and Policy Review which is forthcoming in 2016, and “Air in the Balance: Rewriting the Clean Air Act’s New Source Review Program”, Virginia Lawyer, 2005. In 2007 he was a member of the SELC legal team that achieved a unanimous victory before the U.S. Supreme Court in environmental defense versus Duke Energy. In 2014, Cale was appointed by Virginia Governor Terry McAuliffe to serve on the Governor’s Climate Change and Resiliency Update Commission.

Program Transcript

Jan Paynter: Hello. I’m Jan Paynter and I would like to welcome you once again to our program Politics Matters. Today we are so pleased to welcome back to the program Cale Jaffe, Director of the Virginia Office of the Southern Environmental Law Center to continue discussing the environment in our wonderful state of Virginia. Welcome back, Cale.

Cale Jaffe: Thanks very much for having me.

Jan Paynter: Cale, based on your experience working on the Duke Energy case, how challenging is it from a legal point of view to achieve standing in environmental cases allowing them to go forward?

Cale Jaffe: That’s an interesting question and maybe I can back up and tell you a little bit about the Duke Energy case ‘cause it was such an important case and just for me personally. When I came to SELC in 2004, the very first case as I walked in the door that I got assigned to work on was this major Clean Act enforcement case that SELC was spearheading against Duke Energy for violations of the Clean Air Act in North Carolina and South Carolina. When that case ended up going to the Supreme Court of the United States, I got to sort of sit there towards the back of the courtroom and watch as part of our larger team as that case was argued before the nine justices of the Supreme Court and we were thrilled in April of 2007 to get a unanimous victory, a 9-0 victory, upholding our view of what the Clean Air Act required and that has led to significant Clean Air Act improvements at major power plants not just for Duke but with other major companies like American Electric Power. So that’s been…that was an exciting case to work on but you’re right, one of the interesting issues is who has standing, who has…who’s essentially allowed through the courthouse doors to bring that claim. You have to show that you have a dog in the fight, you’ve got a stake in the outcome of the proceeding. So that’s part of why it’s so important when we partner with community groups in the areas that are most directly affected—the River Keepers, the water keepers, those environmental organizations that represent citizens and families that live right there where…that are most directly affected by whatever the environmental issue is.

Jan Paynter: Yeah, so they’re the soldiers on the frontlines who drive this forward.

Cale Jaffe: Very much so.

Jan Paynter: There were a couple of things I wanted to mention before I get to the next question. Again, when looking specifically at water infrastructure and our ability to be assured of safe drinking water after the Flint, Michigan, canary in the mine so to speak, I recently read in a March entry in “The Guardian” that according to their sources it is a common practice to downplay the amount of lead in a community’s drinking water by engaging in a practice of flushing the lines before testing, thereby lowering the amounts of the lead that registers. The EPA has cautioned against this practice but the enforcement power it would seem is less than effective with no real penalties attached. Mark Edwards, an expert in water quality who insisted in uncovering the Flint, Michigan, water crisis asserts as saying, he calls the EPA’s failure to put a stop on the practice a sick joke played on an unsuspecting public. He also notes that Flint never officially failed the EPA lead and copper rule which I find just astonishing. Again, according to “The Guardian”, during the March water summit in DC the White House called for $4 billion for businesses to deal with crises such as Flint upgrading infrastructure such as dams, canals and water pipes. However, the President did stop short, as we talked about before the program, of wanting to go the full amount on cost because it would be something in the neighborhood of $275 billion to replace all lead lined pipes nationwide which would obviously be an uphill battle in Congress. You and I had talked about local input on this—all citizens having a right to know what precise standards are being used to test water quality in our area and request information as to practices. Now, what is the Clean Water Rule, Cale, and why is Obama’s veto of Congress’s effort to block its implementation so significant?

Cale Jaffe: That’s a great question and an important question. So the Clean Water Rule that EPA has promulgated goes…really has its roots in a core aspect of the Clean Water Act. The Clean Water Act was authored by Congress all the way back in 1972 with a very ambitious goal, which was to ensure that…very simply that our waters…the waters in the United States are clean and free of unhealthy pollutants. So what EPA had traditionally done for many, many years was to say, ‘Well, we have to sort of find the line of what are the waters of the United States that we are regulating, that we are safeguarding and protecting for communities?’ And the Supreme Court has noted and other courts have noted that defining the line where water ends and lands begin…and land begins is not always an easiest or obvious point. There are wetlands, there are marshes, there are prairie potholes that have aspects of land and aspects of water and so we’ve always relied on our expert agencies to help us define that line of what are the wetlands, for example, adjacent to a navigable river that need to be protected under the Clean Water Act? There was a lot of litigation including litigation all the way up to the Supreme Court of the United States over what authority the federal government had to safeguard those areas like wetlands that are core to protection of clean water. And after a series of court cases it essentially went back to EPA to say, ‘Okay, you need to define a clean rule making it very straightforward for everyone from developers, from local governments, homeowners, communities. Everyone needs to know what you are protecting, what you are safeguarding.’ And so that’s what EPA has done with the Clean Water Rule saying, ‘We’re going to make it very crystal clear, we’re going to get rid of the gray area, people aren’t going to sort of second guess “is this covered, is this not covered”. The Clean Water Rule makes that very simple.’ Unfortunately, right now the rule has been staid by a federal court in the Sixth Circuit. Congress has been looking at efforts to block that rule and it’s an important rule for drinking water, it’s an important rule for water quality and it’s actually a beneficial rule from a business standpoint as well because having clear rules of the road makes it a lot easier for businesses to move forward and that’s really the core of what the Clean Water Rule is about is those clear, simple rules of the road.

Jan Paynter: Where does the southeast rank in worldwide carbon pollution?

Cale Jaffe: This is amazing. People sort of often ask us at the Southern Environmental Law Center, ‘Why are you, a regional organization who work in these six states, focused on a global issue like climate change? Why are you putting so many of your resources towards addressing carbon pollution?’ And the reality is is because there is no solution to climate change policy here in the United States without bringing the southeast onboard. The southeast has historically been a very coal dependent region of the country and as a result, if you were to take the six states where SELC works—that’s Virginia, Tennessee, Georgia, Alabama, North Carolina and South Carolina—if you were to treat those six states as a country, that country would be the eighth largest global warming polluter in the world. So the southeast, if it were a country, would be in the top 10 of global warming polluters. So we’ve got to take care of the problem here at home and if the southeast can be a leader in the clean energy industries in growing the thousands of jobs that are available in renewable energy industry, in energy efficiency, then that really sets the stage for us being a leader economically in taking on the problem of climate change.

Jan Paynter: Now that makes the case very powerfully. Where does the…do southeastern states rank in terms of energy efficiency?

Cale Jaffe: You know, unfortunately the southeast has not been a great leader on efficiency. I’ll just give you one example. But we’re making progress. So you go back a few years ago, as recently as say 2008, in Virginia really the only efficiency program we had was from Dominion Power, one of the major electricity providers in the state, a coupon program where you could get a rebate on purchasing compact fluorescent lightbulbs and that was it. A paper coupon for some lightbulbs was the only sort of major institutionalized efficiency program we had. The Southern Environmental Law Center worked with a series of stakeholders including Dominion Power to help shepherd through a new bill in 2009 to incentivize investments in energy efficiency here in Virginia and the result has been since a series of proposals, of really robust portfolios from utilities on energy efficiency. And the result is now, today, just over the last five years efficiency programs in Virginia have saved about 100 gigawatt hours of electricity which is roughly equivalent to the amount of electricity that would be generated from burning almost 55,000 tons of coal. So it is a huge amount of pollution that we have avoided through providing electricity, providing our electric needs through energy efficiency.

Jan Paynter: It’s very impressive. Okay, let’s talk about some of the environmental legal victories which SELC and you have participated in.

Cale Jaffe: Sure. Well, you know, of course, as I mentioned earlier, I was really lucky that the first case I got to work on was a case that went to the Supreme Court of the United States, a major Clean Air Act victory in Environmental Defense versus Duke Energy. But SELC…our model has been very much one of “look for the right tool for the job”. So if it’s engage with a state agency, then we’re in there meeting with state agency officials. If it’s work in the halls of the state legislature, then we’re doing that. If it’s engage up in Congress, then we’re doing that. If it’s go to court, then of course we’re prepared to do that as well. So one of the most recent victories that I’m really proud of for the organization as a whole has been on offshore oil drilling. You look at the southeast and we’ve got a robust and wonderful ocean economy and coastal economy, whether it’s tourism—trips to the beach, hotels and like; whether it’s fishing—both recreation and commercial; whether it’s shipbuilding and boat building. The ocean economy on the southeast from Georgia to Virginia generates more than $14 billion in economic value a year. It’s a huge economic driver for our states. And yet the White House, going back now more than a year, had proposed to open up our Atlantic Coast from Georgia to Virginia to offshore oil drilling, an industry that would—as we saw in the BP Horizon disaster in the gulf—could be a significant threat to the ocean economy that we already have right here in Virginia and throughout the southeast. We were…we got involved, the Southern Environmental Law Center got involved in working with communities along our coast and were amazed to see community by community, town, county, city, step up and say, ‘You know, offshore oil drilling is not what we want for our economy. That’s too big of a risk. We’ve made significant investments in a different kind of ocean economy, an ocean economy that protects and promotes the health of this resource. We don’t want offshore oil drilling.’ And to its credit, the White House heard those voices from…more than 100 communities passed resolutions to say no to offshore oil drilling. The White House heard that, the Bureau of Ocean Energy Management, and has now removed the Atlantic, the southeast Atlantic, from the proposed offshore drilling area so that’s great news for our region.

Jan Paynter: I think people were really startled that it was up to be opened up. I think people were shocked that the administration was taking that position and very relieved when they relented on that possibility. And it does show the power of your organization and so many other ones joining with you to make their voices heard. It really works.

Cale Jaffe: Well, thanks. I appreciate you saying that. It was very much a coordinated effort among a number of groups. And what was really heartening and amazing was just how robust the response was from communities along the coast. If you are a hotel operator, if you run a fishing charter, if you are a boat builder down on the Atlantic coast and someone is proposing offshore oil drilling infrastructure that could threaten your business, you say, ‘We’ve invested too much in our community to see it put at risk with offshore oil drilling.’

Jan Paynter: Another development from your work that was impressive came in February of this year. The Supreme Court denied a request by the American Farm Bureau to challenge pollution limits that the EPA set for the Chesapeake Bay and which meant the Third Circuit Court of Appeals ruled that the EPA did not exceed the authority and allowed it to stand which is a fantastic result.

Cale Jaffe: Well, yeah. On the Chesapeake Bay piece and of course have to…again, that was a series of groups who worked on that. The Chesapeake Bay Foundation obviously, Defenders of Wildlife and many others. But the issue there was that we have struggled for decades to come up with a plan to protect the Chesapeake Bay which is a globally significant resource, really a unique environment. How to protect the Chesapeake Bay and from sediment pollution, from nitrogen pollution, from phosphorous pollution and despite a series of different efforts just…things have been stalling out and so EPA came forward with really a broader programmatic approach to how to treat the Bay as the large resource that it is and protect it in a comprehensive way. And that’s what was called The Bay TMDL. It stands for Total Maximum Daily Load. But this larger bay protection effort. It was one that was challenged by an array of industries that were opposed to additional measures to safeguard the Bay from phosphorous pollution and from nitrogen pollution, from other threats to the Bay, and we were absolutely heartened to see the U.S. Court of Appeals for the Third Circuit uphold EPA’s authority. We had supported EPA in that, in that effort and the Supreme Court of the United States declining to hear the case meaning that the Third Circuit’s victory stands.

Jan Paynter: That’s interesting. One of the…as I was reading for this program, what came up over and over again was more control and authority for local communities over what happens in various different energy areas. What level of control do local communities have over the question of hydraulic fracturing for instance?

Cale Jaffe: That’s been a big issue of concern and we have long insisted that local governments and local communities deserve and have under Virginia law an important role in this. It’s their communities that are at stake. They should be the ones to decide how their hometowns are developed or not developed. We were very pleased to see Attorney General Mark Herring about a year ago now come out with an official Attorney General’s opinion that confirmed the right of local governments to protect their communities from fracking, to use their traditional zoning authority to say, ‘This is not how we’re going to develop this area. This is not how we’re going to develop this area. We’re going to instead preserve it for agriculture, preserve it for residential use,’ whatever it might be but not allow that kind of heavy industrialized use in their communities.

Jan Paynter: Yeah, it was very helpful that he came out for that. Another issue surrounding pipelines and fracking is the question of eminent domain and obviously in this state people are very sensitive to that. There was a recent piece in the paper about Dominion being able to come into someone’s property and survey. The court’s ruled that they had a right to do that but it’s understandable that people are hesitant to allow that and really concerned.

Cale Jaffe: Yeah, I think the pipeline debate in Virginia has been controversial for a couple of reasons. One, just so folks understand what we’re looking at here, is there’s a lot of shale gas development that’s happened in the…let’s call it the Western Marcella Shale Formation so in West Virginia, in Ohio. And there’s a question of how…whether that gas or how that gas would move from those shale fields to markets on the eastern half of the…on the east coast. And what we see right now is various proposals from a series of different companies to build pipelines. In fact there have been as many as four different pipeline proposals all going essentially the same route from Marcella shale formations to markets in eastern Virginia or North Carolina and when you see so many different pipelines proposed all at the same time, I think it’s natural for communities and people to ask, ‘How much of this do we really need? Do we need all these pipelines all at the same time? Let’s take a look at this holistically, let’s look at this from a larger programmatic perspective and say, “Let’s identify the need and if there’s not a need for all these lines all at once, let’s not build them all at once”.’

Jan Paynter: Well, and your website does a great job of pictorially showing what is actually involved with the pipeline because sometimes when it’s explained by the companies, it sounds like a rather small ordeal but when you actually see how much land is involved that has to be exposed and involved in being restricted to the utility use on both sides of the property for instance, you can see that a landowner or farmer is going to be very, very concerned about just how much of his land is going to be taken up with this, bisected, what it’s going to mean for his crops, his cattle. It’s very problematic.

Cale Jaffe: We had an exciting victory not that long ago as it relates to Dominion’s Atlantic coast pipeline through the George Washington National Forest. We had raised some significant concerns about that. The pipeline as Dominion had initially proposed it was going to come over Shenandoah Mountain in Virginia, it was going to come over Cheat Mountain in the Monongahela National Forest in West Virginia. Again, this is an area that the Forest Service has called part of the wildland core of the Central Appalachians and we were thrilled to see the Forest Service say to Dominion, ‘No, you cannot put your pipeline across Cheat Mountain and across Shenandoah Mountain. It’s inconsistent with the values that we are sworn to protect.’ Dominion has since proposed a route that is trying to circulate or circumnavigate around those mountains. Well, that’s still very much in the early stage of analysis. New communities that before were not looking at a pipeline are now looking at a potential pipeline in their backyard. So there’s a whole new process that needs to begin for this new route that Dominion’s proposed.

Jan Paynter: I thought it was fascinating the percentage of Virginia General Fund Revenues that are allocated for environmental programs. We were talking about this before the program. Less than one percent. Can we look for any progress on that funding down the road, do you think?

Cale Jaffe: State budgets have always been controversial and have always been difficult and it’s hard to secure funding for the kind of environmental protections that we all rely on—the safeguards for clean water, the safeguards for clean air. Those are investments that you’ve got to make. Frankly I think that’s part of the role of nonprofit organizations like SELC is because if the state doesn’t have the funding to be the watchdog on all of these potentially polluting events throughout the state, you need someone else who’s going to come in and can step up and work with a local community to protect these vital resources.

Jan Paynter: That’s what’s so exciting to me about the public/private partnerships that have really gotten a lot of traction in all kinds of areas. Finally today, Cale, in 2014, as I mentioned at the beginning of the program, you were appointed to serve on the Governor’s Climate Change and Resiliency Update Commission. What new developments do you want to share with us that have been the result of this?

Cale Jaffe: Sure. Well, it was exciting of course to have a governor who stood up and said that, ‘We recognize that climate change is a significant and real threat’, who recognized that Virginia in particular has a lot at risk, whether it’s flooding in areas like Norfolk and throughout Hampton Roads or impacts on agriculture in the western part of the state. Virginia needed to be part of the solution. We couldn’t just bury our heads in the sand. We needed to prepare for climate change and we needed to do what we could to develop a clean energy economy here at home. And so that was I think part of what got Governor McAuliffe excited about engaging this issue when he put together the commission. One of the things that I’m excited to see in the commission’s final report which came out in December was a recommendation that the governor establish for the state, for state owned businesses or rather…yeah, for state departments and buildings a renewable energy target. We had had, I believe established by Governor Kaine, an energy efficiency target for state buildings and state departments. Now we’ve got that same target for renewable energy and so the governor has been looking for opportunities on solar energy in Virginia. We’re excited about that. We want to see solar grow every opportunity that we can find.

Jan Paynter: Oh, I think it’s terrific and reducing the carbon footprint is a very worthy goal and I know one the governor is very and you are very passionate about. Cale, I would like to thank you very much for agreeing to do this interview today, this two part interview. This was tremendous information.

Cale Jaffe: Well, thank you so much for giving me the opportunity and for…and sharing so much of your time with me and your audience.

Jan Paynter: Thank you at home for joining our conversation. If you would like more information concerning the topic under discussion today, we invite you to take a look at our website at politicsmatters.org. We will be posting a number of books, articles and relevant links on many of the issues under discussion today there for you. You can also find a complete archive of prior Politics Matters programs which you may watch in their entirety anytime. We will be posting extended versions of interviews online on our site as well and continue to be adding more content. You can also watch our programs on wvpt.net as they have an extensive archive. As always, we’re very interested in hearing from you with ideas, questions and concerns for future programs. We encourage you to email us at jan@politicsmatters.org. We are on PBS WVPT on the second and last Sunday of every month at 11:30 am. Thank you again and until next we meet, I’m Jan Paynter and this is Politics Matters.